With the Supreme Court's decision Monday not to revisit Citizens United, the high court appears to be a dead end for those seeking to address the problem of dark money in elections. Now, key congressmen and reformers say, Congress must act. But the prospects for lawmakers doing so appear slim.
In response to the decision, Sen. Sheldon Whitehouse, D-R.I., urged Congress to swiftly enact the DISCLOSE Act, a bill he's sponsoring to require organizations making election ads to disclose their underwriters. Whitehouse, seen at left with now Justice Elena Kagan when she was making courtesy calls before her confirmation, has predicted that the legislation will come to the Senate floor next month. Whitehouse has 44 co-sponsors on the bill but it will require a super-majority of 60 votes for the Senate to act. The House will only act on the legislation in the unlikely event that Whitehouse picks up a few Republicans to get the bill through the Senate, according to congressional staffers working on DISCLOSE.
Whitehouse criticized the high court's conservative majority for "doubling down" on Citizens United, arguing that the transparency and distance that the justices said would deter the potentially corrupting influence of corporate contributions never materialized.
The court's "presumption that super PACs would be independent from candidates, and that there would be transparency about the special interest money polluting our elections, are both demonstrably and indisputably wrong," he said.
The sponsor of DISCLOSE in the House, Rep. Chris Van Hollen, D-Md., said the Montana decision "flies in the face of the state's history of corrosive influence of corporate spending and rejects the decision of Montana voters to rid their state of this corrupt influence."
But, because of the opposition Senate Minority Leader Mitch McConnell, a Kentucky Republican who controls 47 votes in the Senate — more than enough to bottle up legislation — DISCLOSE is unlikely to move this Congress.
McConnell praised the Court for upholding the first amendment rights of corporations in a press release today. He wrote that the fears of corporate spending in elections have not been realized, citing an analysis showing that 86 percent of the money sent to eight Republican super PACs came from individuals, not corporations.
The justices' 5-4 vote overturned the Montana Supreme Court's decision upholding the state's ban on corporate spending on elections. The majority said the Montana court ran afoul of the U.S. Supreme Court's 2010 ruling in Citizens United, which paved the way for the unprecedented election spending by outside groups by declaring the ban on corporations and unions spending on elections unconstitutional.
The outside spending spree that has occurred since Citizens United was cited by the four justices in the minority as a reason to revisit the case. "Montana's experience, like considerable experience elsewhere since the Court's decision in Citizens United, casts grave doubt on the Court's supposition that independent expenditures do not corrupt or appear to do so," Justice Stephen Breyer wrote in a dissent that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayer and Elena Kagan.
In the original Citizens United ruling, the court by an 8-1 margin endorsed the disclosure requirement under the Bipartisan Campaign Finance Reform Act, rejecting the plaintiff's argument that it chills speech. And–regardless of the question of whether outside money is corrupting–that disclosure argument has turned into a political fight. Democrats have asked the Internal Revenue Service to investigate whether 501c4 nonprofit groups, where more money is being spent on behalf of Republicans than Democrats, are violating their tax-exempt status. Minority Leader Mitch McConnell, R-Ky., a staunch opponent of campaign finance regulations, has cried foul, saying recently that DISCLOSE is really about chilling speech by groups critical of Democrats.
The court's decision in the Montana case came despite the pleading of Whitehouse and Sen. John McCain, R-Ariz., who filed a brief to the Supreme Court, and those of a host of outside groups, including the Campaign Legal Center, which advocates for stricter campaign finance regulations and called for Congress to act after the decision today. The Sunlight Foundation signed on to a brief filed by the CLC arguing that with the explosion of spending by outside groups in the post-Citizens United world, the current disclosure laws do not adequately keep politicians accountable.
A deluge of election spending in 2010 and 2012 has also come from nonprofit groups that have registered as "social welfare" organizations and do not have to publicize their donors. Because of Citizens United, these groups can take unlimited corporate or union money. Or corporations and unions can just dump the money into elections on their own. In the 2010 election, nonprofit groups spent $95 million influencing the election, compared to $65 million for super PACs, according to a Center for Public Integrity report using Federal Election Commission records. So far this year, some $12 million has been spent on elections by groups that do not disclose their donors.
That does not even take into account those ads that are not reported to the FEC, which include all of the ads that have been targeted at Barack Obama so far, because they have not come within 60 days of the election. Through April, four of the five groups that spent the most on the 2012 general election were shadowy nonprofits, not super PACs.
(photo credit: Office of Sen. Sheldon Whitehouse)